Lawyer Says Zuccotti Park Demonstrators Broke No Law

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Robert Stolarik for The New York TimesPolice officers in Zuccotti Park, on Nov. 15, 2011 where they removed tents and arrested Occupy Wall Street protesters.

When hundreds of police officers entered Zuccotti Park early on Nov. 15, they dismantled tents and other structures that had been erected by Occupy Wall Street protesters in defiance of rules established in September by the park’s owner, Brookfield Properties.

The police also arrested dozens of protesters who refused to leave the park, charging them with offenses that included trespassing and disorderly conduct, as officers set up metal barricades around the park’s perimeter.

On Friday, a defense lawyer argued in Criminal Court in Manhattan that such charges filed against two of his clients should be dismissed.

While it might be appropriate for Brookfield to establish rules governing behavior in the park, the lawyer said, the company could not order people out of the park, because an agreement with the city required it to be open to the public 24 hours a day.

“Brookfield lacked the authority to exclude people,” the lawyer, Jethro M. Eisenstein, argued in support of a motion to dismiss the charges, contending that it was “unseemly and unjust to allow Brookfield to harness the power of the state” to clear the park of protesters.

But an assistant district attorney told Judge Matthew A. Sciarrino Jr. that the company was within its rights to revoke permission for protesters to be in the park while the police and sanitation workers removed banned structures.

“They have to have the ability to enforce rules,” the prosecutor, Ryan Hayward, said. “They did deem it necessary to close that park.”

Judge Sciarrino asked both sides to clarify certain points. He asked Mr. Eisenstein if he thought the rules allowed people to use Zuccotti Park for any purpose. Later, he told Mr. Hayward that experience had taught him that sometimes, “the law is not simply what the city says it is.”

At the heart of the arguments is the issue of what authority and responsibilities Brookfield has in managing Zuccotti Park, a half-acre granite expanse in the financial district that the Occupy protesters turned into a headquarters in mid-September. The park was created under an agreement that allowed developers of a skyscraper across Liberty Street to build 500,000 extra square feet of office space.

In return, the developers created a public space that would be open 24 hours a day, 7 days a week.

According to papers filed by Mr. Eisenstein and the New York Civil Liberties Union, Brookfield can limit public access to the park only after going through a process that involves gaining the approval of the City Planning Commission.

The district attorney’s office, along with the city’s Law Department, disagreed, writing that “Brookfield Properties was faced with a situation where the volume of tenting, structures, sleeping bags, pillows, clothes, trash and other personal property had created a safety condition,” and that the only effective remedy involved clearing people from the park.

At one point, Judge Sciarrino asked Mr. Hayward if he agreed that there was a distinction between rules of conduct and rules of access. Mr. Hayward replied that he did and that in order “to ensure compliance with rules of conduct that temporary closure needed to be effectuated.”

Mr. Eisenstein countered that the closure could not accurately be termed temporary because metal barricades surrounded the park for nearly two months after Nov. 15, and that people entering during that time were subject to searches by private security guards.

Judge Sciarrino did not rule immediately on the motion.

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